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  • Press Release

    37 Vedder Price Attorneys Recognized in 2022 Best Lawyers® in America

    August 19, 2021

    Vedder Price is pleased to announce that 37 attorneys have been recognized by Best Lawyers®  in the 2022 edition of The Best Lawyers in America. In addition, Shareholder Douglas J. Lipke has been named the 2022 Lawyer of the Year in Litigation – Bankruptcy.

    Chicago, IL

     

    Los Angeles, CA

     

    New York, NY

     

    San Francisco, CA

     

    Washington, DC

     

    Additionally, 13 Vedder Price attorneys were named Ones to Watch in 2022. This award recognizes attorneys 5-9 years in practice who exhibit outstanding professional excellence. The rankings are based on an evaluation process that includes client and lawyer evaluations, as well as peer reviews from attorneys in their field.

    Chicago, IL 

     

    Washington, DC

     

    Los Angeles, CA

    For more information, please visit www.bestlawyers.com. (Registration required.)

  • Press Release

    Americas Lodging Investment Summit Names Vedder Price-led Transaction the Single Asset Transaction of the Year

    August 9, 2021

    Vedder Price is pleased to announce that the Americas Lodging Investment Summit (ALIS) has named a deal led by Michael M. Eidelman, Shareholder and Chair of the firm’s Insolvency, Bankruptcy and Corporate Reorganization group, as its Single Asset Transaction of the Year. ALIS is the largest hotel investment conference in the world, and each year it honors the executives and companies responsible for the most influential hotel industry deals with the summit’s prestigious ALIS awards. In 2020, the Vedder Price-led sale of the L’Ermitage Beverly Hills Hotel was named Single Asset Transaction of the Year in the $25 million and over category.

    The L’Ermitage Beverly Hills Hotel property was among the assets sold by the United States Government in an effort to recover illegally laundered funds from a major international money laundering scandal known as 1MDB, which allegedly involved the embezzlement of billions of dollars from the Malaysian development fund of the same name. Vedder Price Shareholder Michael M. Eidelman was appointed by the United States District Court for the Central District of California to serve as the Special Master overseeing the sale of the L’Ermitage. Mr. Eidelman was assisted by Real Estate Chair Andrew Torre, Ryan S. Hedges and Allison B. Hudson.

    The Vedder Price team ran a competitive auction and sale process in accordance with Court approved sale procedures, and solicited over 50 competing bids for the hotel in an open and transparent manner. In October 2020 the hotel property was ultimately sold to EOS Investors, LLC, a real estate investment firm specializing in the hospitality sector, for $100 million.

    “The Vedder Price team is honored to be recognized by The Americas Lodging Investment Summit,” Mr. Eidelman said. “We couldn’t be happier with the outcome of the sale. The transaction highlights both our industry knowledge and hard work.”

    Read ALIS’s press release here for more information.

  • Press Release

    Vedder Price Represents DLL in $1 Billion Securitization

    August 18, 2021

    Vedder Price is pleased to announce that it represented DLL in connection with DLLAD 2021-1, a $1 billion securitization of a pool of retail installment sale contracts, loans, leases and other financings and/or refinancings with respect to agricultural, golf course and turf equipment. The transaction is DLL’s eighth securitization and involved the issuance of four classes of notes.

    Global Transportation Finance Shareholder Edward K. Gross and Capital Markets Shareholder Kevin A. MacLeod led the team from Vedder Price which also included Tax Shareholder Matthew P. Larvick and Associates Jonathan M. Rauch and Conor A. Gaughan.

    “We are proud to have partnered with DLL on its eighth securitization and its second securitization of 2021,” said Mr. Gross. “We look forward to our continued relationship with DLL, working together to fulfill their long-term business strategies and to bring to market future securitizations.”

    The notes have not been and will not be registered under the U.S. Securities Act of 1933, as amended (Securities Act), or the securities laws of any jurisdiction. The notes were offered and sold only to qualified institutional buyers in reliance on Rule 144A under the Securities Act and outside the United States to non-U.S. persons in offshore transactions in reliance on Regulation S under the Securities Act.


  • Press Release

    Vedder Price Obtains Complete Defense Verdict for Client Charged in Alleged $245 Million Securities and Accounting Fraud Matter

    July 30, 2021

    Vedder Price is pleased to announce that after a two and a half week trial, a jury sitting in the United States District Court for the Eastern District of Wisconsin has acquitted firm client Mark Wogsland of all criminal charges brought against him by the United States Department of Justice in connection with an alleged $245 million securities and accounting fraud scheme.

    The Department of Justice had alleged that Mr. Wogsland and his codefendants, former accounting executives of a publicly traded logistics company, Roadrunner Transportation Systems, participated in a complex securities and accounting fraud scheme that allegedly resulted in hundreds of millions of dollars in losses to shareholders. Prosecutors had charged Mr. Wogsland with 14 counts, including conspiracy, securities fraud, wire fraud, misleading Roadrunner’s outside auditors, falsifying the books and records of the company, and insider trading. The jury’s verdict finding Mr. Wogsland not guilty on every count clears him of all charges in the case. Vedder Price represented Mr. Wogsland throughout the criminal litigation, which has spanned more than three years and involved more than nine million pages of discovery produced by the Department of Justice.

    Mr. Wogsland was represented throughout the litigation and at trial by a Vedder Price team led by Shareholder Ryan S. Hedges, a seasoned trial lawyer and former federal prosecutor who routinely represents companies and individuals in sensitive and high-profile matters involving the Department of Justice and Securities and Exchange Commission, among other government agencies. Commenting on the jury’s decision, Mr. Hedges stated, “We appreciate that the jury carefully considered the evidence, followed the court’s instructions on the law and entered their verdict acquitting Mark of each and every count in the case. This litigation was long and hard fought, and we and our client are extremely pleased with the outcome.”

    Mr. Hedges was assisted throughout the trial by his fellow Shareholders Thomas P. Cimino, Jr. and Junaid A. Zubairi and Associates Jonathon P. Reinisch and Brooke E. Conner. “This outstanding result is due in no small part to both Ryan’s incredible ability to simplify complex accounting issues for the jury and his constant focus on highlighting the flaws and inconsistencies in the government’s case,”  noted Mr. Cimino, Chair of Vedder Price’s Litigation practice area. “I am incredibly proud of Ryan, Jonathon and every member of our team who worked tirelessly to achieve this result.”

    “This outcome underscores our group’s significant bench strength and ability to successfully represent clients in all stages of contentious government investigations and litigation,” added Mr. Zubairi, Chair of the firm’s Government Investigations & White Collar Defense group. “Our victory at trial is the result of a great deal of effort and strategic thought throughout the investigation and litigation process. Ryan and our team really put on a masterclass at trial. I would take him in a courtroom against any trial lawyer in the country.”

  • Newsletter/Bulletin

    Non-Solicitation Agreements Face Heightened Risk of Criminal Prosecution as DOJ Secures Latest Indictments

    August 2, 2021

    On July 15, 2021, a federal grand jury in Colorado returned two criminal antitrust indictments against DaVita (a kidney dialysis center operator)  and its former CEO Kent Thiry, accusing them of conspiring with Surgical Care Affiliates, LLC (“SCA”) “to suppress competition between them by agreeing not to solicit each other’s senior-level employees.”  SCA was indicted in January 2021 in a federal court in Texas for participation in the same conspiracy (see our previous alert).  In an unrelated case, nurse staffing company VDA OC LLC was indicted in March 2021, allegedly for agreeing with one of its competitors not to recruit or hire nurses from each other or raise their wages.

    The DaVita indictments continue the aggressive stance taken by the Department of Justice Antitrust Division (“DOJ”), having warned in its 2016 Guidance for Human Resource Professionals that it would pursue criminal prosecution against “no-poach agreements.”1 They also continue to heighten the risk of criminal culpability for non-solicitation agreements that companies may consider reasonable.

    DOJ Allegations

    The DOJ framed its factual allegations in terms unflattering to the defendants and very similar to those used in criminal price-fixing indictments against competing sellers.  DaVita, for example, allegedly had an unwritten “gentlemen’s agreement” with a rival firm not to poach each other’s senior-level employees.  Recruitment efforts were permitted only after the employee notified their employer of their intent to leave.  Even when notice was given, the defendants sometimes allegedly declined to interview candidates, hiding the existence of the agreement and later briefing the current employer about the outreach and response. The indictments allege that the defendants had a “valuable relationship” that they did not wish to jeopardize by competing for senior executives.  The government seeks to frame these no-poach cases as uncomplicated criminal conspiracies between rival firms, including allegations about concealment and constant monitoring to verify compliance.

    These allegations obscure the fact that felony criminal charges against non-solicitation agreements between employers are unprecedented. The DOJ recognized as much when it issued the 2016 HR Guidance, warning of criminal exposure only for future no-poach agreements.  SCA has challenged the no-poach indictments in a motion to dismiss on which the Texas court has yet to rule, arguing primarily that the Due Process Clause does not permit the DOJ to pursue criminal charges for conduct no court has yet held to be per se illegal.  

    Risk to Business Community  

    By treating non-solicitation agreements between employers as per se illegal, the DOJ potentially opens the door to criminal enforcement for conduct that falls far short of the kind of clandestine conspiracy alleged against DaVita and SCA. In the DOJ’s view, the only criminal act necessary for the SCA/DaVita indictments is that the defendants agreed “not to solicit each other’s senior-level employees.”  No motive, rationale or result (either achieved or merely intended) has been alleged.  The DOJ’s view is that, much like horizontal price fixing and bid rigging, the challenged no-poach conduct is illegal and merits criminal prosecution regardless of the reasons for it, regardless of the agreement’s actual or likely effects on any competitive markets for labor, and regardless of whether the agreement may achieve pro-competitive benefits that outweigh any such effects.  If the government were to claim that criminal culpability turned in any way on why the defendants reached an agreement or whether the agreement actually harmed competition, the courts may not accept that the DOJ can prove criminal intent necessary for a felony conviction by simply showing that the defendants entered into a no-poach agreement.

    The DOJ’s position in the no-poach criminal cases raises serious concerns for employers who do not seek to depress salary levels, but instead use written employee non-solicitation agreements to protect legitimate interests recognized under state laws.  These interests may be to protect against the theft of trade secrets in sensitive industries; to allow companies to collaborate and innovate in order to develop new products or services; or to end costly and time-consuming litigation when a key employee takes knowledge and goodwill from a former employer to that employer’s competitor.  The DOJ’s stated position that non-solicitation agreements are illegal “per se” leaves little room for arguments that, in specific cases, they protect such vital interests.

    The use of restrictive covenants for some or all of these purposes will present heightened risk, at least until courts consider the DOJ’s position in the SCA and DaVita no-poach cases.  If the courts do not dismiss the indictments, only prosecutorial discretion may decide such agreements’ fates going forward, and the Biden Administration has been outspoken in its condemnation of most non-compete agreements.2

    Recommendations for Employers 

    The 2016 HR Guidance states that DOJ policy is to prosecute only non-competes that are “separate from or not reasonably necessary to a larger legitimate collaboration between the employers” (such as “appropriate shared use of facilities”).3 The DOJ thus recognizes nominally that facts and circumstances matter in evaluating whether non-solicitation agreements are properly subject to criminal enforcement.  But the 2016 HR Guidance does not have the force of law and says very little about what DOJ would consider a “legitimate collaboration.”  For example, it does not address the common circumstance in which a former employer seeks to enforce an employee non-solicitation covenant against a new employer with which it is not engaged in an ongoing collaboration. Employers who face repeated disputes of this type with the same new employer should review carefully with legal counsel whether a no-poach agreement between employers is a legitimate means to avoid the cost and business disruption of repeated legal proceedings over enforcement of such covenants.   

    Court rulings in the SCA and DaVita cases may provide some guidance for companies and counsel seeking to navigate their risk of criminal exposure arising from no-poach agreements and conduct.  Until then, agreements between employers that may have the effect of restricting employee mobility should be reviewed by counsel, even those that have been in place for a period of time.

     

     

    1. United States Dep’t of Justice and Federal Trade Comm’n, ANTITRUST GUIDANCE FOR HUMAN RESOURCE PROFESSIONALS at 4 (2016) (“2016 HR Guidance”), available at https://www.ftc.gov/public-statements/2016/10/antitrust-guidance-human-resource-professionals-department-justice.

    2. Exec. Order No. 14036, 86 Fed. Red. 36987 (Jul. 9, 2021) and accompanying “Fact Sheet” available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/ (calling on FTC to “ban or limit non-compete agreements”).

    3. 2016 HR Guidance at 3.

  • Article

    Jonathan Maude and Esther Langdon author “Get Ready for a Surge in Workplace Disputes” for The Times

    July 23, 2021

    London Employment attorneys Jonathan Maude and Esther Langdon recently authored “Get Ready for a Surge in Workplace Disputes” for The Times. Their article highlights the challenges employers face as their employees begin to see the end of working from home.

    Mangers must be willing to collaborate and work to hear their employees anxieties resulting from the prolonged restrictions. Mr. Maude and Ms. Langdon encourage companies to bring back mediation.

    If navigated correctly, mediation allows for employees voices to be heard across all subject matters, which is not always the case with more regimented procedures. “Managers should be equipped with the knowledge and skills to spot brewing disputes, have difficult conversations and consider alternative forms of dispute resolution where appropriate, including mediation,” they argue.

    To read the article in full, click here. Subscription may be required.

  • Webinar

    New California Employment Law and Recent Developments Webinar

    October 28, 2021

    You are invited to join us for a complimentary one-hour webinar program designed for in-house counsel and human resources professionals, led by employment attorneys at Vedder Price, to discuss new California employment laws and recent case law developments.

    Event Details

    Thursday, October 28, 2021 | 10:00 a.m. - 11:00 a.m. (PT)
    Online Seminar

    Who should attend: This event is intended for in-house counsel and human resource professionals.

    Agenda

    Governor Newsom approved many new employment laws taking effect on January 1, 2022. These laws, together with recent court decisions, impose new compliance challenges on employers in California.

    What is changing in 2022?

    This webinar will provide an overview of many notable changes coming on January 1. Some of the significant new laws we plan to cover include:

    • SB 331, limiting the use of non-disclosure and non-disparagement provisions in release agreements
    • SB 606, creating new Cal/OSHA violations for enterprise-wide and egregious violations
    • SB 807, expanding the retention requirements of personnel records to 4 years
    • AB 701, regulating the use of employee production “quotas” in warehouse distribution centers
    • AB 1033, expanding CFRA leave protections to cover parents-in-law

     

    CLE & HRCI Credit

    Vedder Price is an accredited CLE provider in California, Illinois and New York; and, when possible, a sponsor in Virginia.

    The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

    HRCI Approved Provider 2021 Seal

  • Webinar

    Vedder Price to Present at the 2021 IDC Fund Directors Virtual Conference

    October 20-21, 2021

    Vedder Price shareholders will be featured as speakers at the upcoming 2021 Fund Directors Virtual Conference, hosted by the Independent Directors Council (IDC) on October 20-21, 2021.

    The IDC represents independent directors and trustees who serve on the boards of mutual funds, closed-end funds, exchange-traded funds and other registered investment companies, engaging in activities and advocacy to promote excellence in fund governance for the benefit of shareholders. The organization’s annual fund directors’ conference is a premier event for fund directors, and features timely, informative panel sessions, updates from industry leaders and engaging networking opportunities.

    Shareholders Renee M. Hardt, John S. Marten, Jacob C. Tiedt and Kimberly K. Vargo will be presenting a thought leadership panel at the conference entitled “Board Oversight of Innovative Investments and Strategies” at 11:00 a.m. ET on Wednesday, October 20. In the session, they will explore and discuss the types of questions that directors should be considering as they evaluate the launch and ongoing oversight of funds that use innovative investments and strategies, such as crypto, ESG, and strategies that seek to provide defined outcomes over a stated outcome period.

    Shareholder Amy Ward Pershkow will be a featured panelist for the conference panel “Trends in Fund Governance” at 2:20 p.m. ET on Wednesday, October 20.

    For more information on the agenda and to register, please visit the conference website here.

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